1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-1-1996

Colville v. Allegheny Co. Ct. of Comm. Pleas

Precedential or Non-Precedential:

Docket 95-3014

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Recommended Citation

"Colville v. Allegheny Co. Ct. of Comm. Pleas" (1996). 1996 Decisions. Paper 224.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

N0. 95-3014 

 

 FOCUS, (For Our Children's Ultimate Safety), 

a citizens' advocacy group; JACQUELINE COLVILLE; 

CATHERINE SILVIO, 

Appellants 

v. 

ALLEGHENY COUNTY COURT OF COMMON PLEAS, 

Family Division Juvenile Section; 

HONORABLE JOSEPH JAFFE 

 

On Appeal From the United States District Court 

For the Western District of Pennsylvania 

(D.C. Civil Action No. 94-cv-02160) 

 

Argued: April 18, 1995 

BEFORE: STAPLETON, HUTCHINSON* and SEITZ, Circuit Judges

(Opinion Filed: February 1, 1996) 

 

 

Jon Pushinsky (Argued) 

1808 Law & Finance Building 

Pittsburgh, PA 15219 

 and 

Witold J. Walczak 

American Civil Liberties Union 

Greater Pittsburgh Chapter 

237 Oakland Avenue 

Pittsburgh, PA 15213 

 Attorneys for Appellants 

 FOCUS, Colville and Silvio 

 
* The Honorable William D. Hutchinson was a member of the panel 

 which heard this appeal, but died before the opinion issued. 
David M. Donaldson (Argued) 

Administrative Office of PA Courts 

1515 Market Street, Suite 1414 

Philadelphia, PA 19102 

 Attorneys for Appellees 

 The Court of Common Pleas of 

 Allegheny County and 

 Honorable Joseph Jaffe 

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 A citizen's advocacy group, "For Our Children's 

Ultimate Safety" ("FOCUS"), and two of the group's members, 

Jacqueline Colville and Catherine Silvio (collectively, the 

"plaintiffs"), appeal from an order of the United States District 

Court for the Western District of Pennsylvania granting a motion 

to dismiss their 42 U.S.C. § 1983 claim against the Family 

Division of the Allegheny County Court of Common Pleas and a 

judge of that court. Their claim arises out of gag orders 

entered during a celebrated child custody case, In re Byron 

Griffin, No. 1608-92 (Pa. C.P. filed Aug. 21, 1992) (the "Baby 

Byron" case), currently pending before the court of common pleas. 

The gag orders prohibited the parties to that case from 

discussing the case with the public. FOCUS (but not the 

individual plaintiffs) attempted to intervene in the Baby Byron 

case, arguing that the gag orders violated its rights under the 

First Amendment. 

 In a quick series of events, (1) the court of common 

pleas rebuffed FOCUS' attempt to intervene, (2) the Pennsylvania 
Superior Court refused to entertain FOCUS' motion for a writ of 

mandamus, and (3) the Pennsylvania Supreme Court denied FOCUS' 

petition to exercise its King's Bench jurisdiction to declare the 

gag orders unconstitutional. FOCUS then joined forces with the 

two individual plaintiffs and filed this § 1983 suit in federal 

district court, alleging that the state court and its judge 

violated their First Amendment rights. The district court 

dismissed all claims against the state court on Eleventh 

Amendment grounds. It then dismissed the claims against the 

judge, holding that it did not have subject matter jurisdiction 

under the Rooker-Feldman doctrine and also that it should abstain 

under Younger v. Harris, 401 U.S. 37 (1971). 

 The plaintiffs appeal only the district court's RookerFeldman and Younger rulings. The plaintiffs do not appeal the 

district court's decision to dismiss their claims against the 

state court on Eleventh Amendment grounds. We hold that neither 

the Rooker-Feldman doctrine nor Younger bars the plaintiffs' 

federal challenge to the judge's gag orders, and we will 

accordingly reverse and remand for further proceedings. 

I. 

 FOCUS is a Pittsburgh, Pennsylvania unincorporated 

association consisting of some fifty birth and foster parents 

whose goal is to make the Allegheny County Children and Youth 

Services ("CYS") more accountable, accessible and understandable. 

One of FOCUS' activities is to acquire information about the 

operations, policies and practices of CYS by listening to and 
advising individuals affected by the agency's activities. FOCUS 

has been interested in the highly-publicized1 Baby Byron case, a 

child dependency and adoption proceeding which involves a dispute 

between white foster parents and the biological mother over the 

placement of two young black children. 

 FOCUS claims that its attempts to keep informed about 

the Baby Byron case have been hampered by several gag orders. The 

first order, issued on January 24, 1994, states: 

[I]t is hereby ORDERED, ADJUDGED, and DECREED 

that the parties and their counsel and others 

having knowledge or information whatsoever 

regarding this case are prohibited from 

releasing any such knowledge or information, 

in whole or in part, to the media or 

otherwise. 

(App. at 16.) The second gag order, issued on November 1, 1994, 

directs that: 

[The] parties are to have no contact with the 

public vis a vis discussing or referring to 

this case in any public context or forum. 

(App. at 18.) The judge reaffirmed the second order on November 

14, 1994, and it remains in effect today. 

 The parties to the Baby Byron case have not challenged 

the gag orders. The plaintiffs allege that this is because the 

judge has threatened to deny custody of the child to any party 

that publicly discusses the case. The plaintiffs further allege 

that the child's foster parents, Karen and Michael Derzack, 

"recently released a book detailing their experiences with Byron 

 

1

 E.g., Alyssa Gabbay, Baby Byron Case Illustrates Black-andWhite Issue of Adoption, L.A. Times, Sept. 17, 1995, at A22 

(stating that the case has focused national attention on the 

issue of transracial adoption and has inspired nationwide media 

coverage, a book, legislation, and a recent motion picture). 
and their frustration with CYS and the courts," thus indicating 

that the Derzacks were willing to talk at some point prior to the 

entry of the gag orders. (App. at 9.) 

 On November 14, 1994, FOCUS (without Colville and 

Silvio) moved to intervene in the Baby Byron case for the limited 

purpose of challenging the gag orders on free speech grounds. The 

judge's tipstaff informed FOCUS that the judge would not accept 

FOCUS' intervention motion and that FOCUS would not be permitted 

to present argument in opposition to the gag orders. FOCUS claims 

that the judge refused even to accept the motion to intervene so 

that he would not have to deny it formally. 

 FOCUS immediately filed an "Emergency Petition For a 

Writ of Mandamus" with the Superior Court of Pennsylvania, 

seeking an order compelling the judge to permit FOCUS to 

intervene in the Baby Byron case and to participate in that 

afternoon's scheduled hearing. The superior court immediately 

denied that motion for lack of jurisdiction. 

 FOCUS responded on November 16, 1994, by filing a 

"Petition For Extraordinary Relief And Request For Expedited 

Decision" with the Pennsylvania Supreme Court, seeking to invoke 

the court's extraordinary "King's Bench" jurisdiction pursuant to 

42 Pa. Cons. Stat. Ann. §§ 502, 726. Unlike the Emergency 

Petition to permit intervention, however, FOCUS asked the court 

to issue an order declaring the gag orders unconstitutional. The 

supreme court denied the Petition for Extraordinary Relief on 

December 12, 1994 without explanation. 
 On December 19, 1994, FOCUS joined with individual 

plaintiffs Silvio and Colville to file their verified complaint 

and motion for a temporary restraining order in the United States 

District Court for the Western District of Pennsylvania. The 

defendants moved to dismiss the next day for lack of subject 

matter jurisdiction. On December 22, 1994, the district court 

held a hearing on the motion to dismiss and granted it for the 

reasons stated above. This timely appeal followed. 

II. 

 The parties do not raise the issue but, before we can 

proceed further on the merits, we must satisfy ourselves that the 

plaintiffs have standing to present their free speech challenges 

to the gag orders. E.g., Elkin v. Fauver, 969 F.2d 48, 52 n.1 

(3d Cir.) (considering standing issue sua sponte and noting that 

the courts of appeals have an independent obligation to ensure 

that federal jurisdiction is present in cases coming before 

them), cert. denied, 113 S. Ct. 473 (1992). "The party invoking 

federal jurisdiction bears the burden of establishing" the 

elements of standing, and "each element must be supported in the 

same way as any other matter on which the plaintiff bears the 

burden of proof, i.e., with the manner and degree of evidence 

required at the successive stages of the litigation." Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 561 (1992). Thus, "when 

standing is challenged on the basis of the pleadings, we 'accept 

as true all material allegations in the complaint, and . . . 

construe the complaint in favor of the complaining party.'" 
Pennell v. City of San Jose, 485 U.S. 1, 7 (1988) (quoting Warth 

v. Seldin, 422 U.S. 490, 501 (1975)). 

 The standing issue arises in this case because the gag 

orders merely constrain the speech of the parties and the 

attorneys to the Baby Byron case; the plaintiffs do not complain 

that the orders affirmatively constrain their speech in any way.2

Of course, that alone does not mean the plaintiffs' case fails 

for lack of standing. "We have routinely found, as have other 

courts, that third parties have standing to challenge protective 

orders and confidentiality orders in an effort to obtain access 

to information or judicial proceedings." Pansy v. Borough of 

Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994) (footnote omitted); 

see also In re Dow Jones & Co., 842 F.2d 603, 607 (2d Cir.) 

(noting the rights of potential recipients of speech to challenge 

the abridgment of that speech), cert. denied, 488 U.S. 946 

(1988). 

 That putative recipients of speech usually have 

standing to challenge orders silencing would-be speakers does not 

necessarily mean that the plaintiffs in this case have standing, 

however. The plaintiffs still must show that the gag orders have 

caused them injury in fact and that their injury is likely to be 

redressed by a favorable decision. See, e.g., United States v. 

Hays, 115 S. Ct. 2431, 2435 (1995) (setting forth the three 

 

2

 The first order does speak to "others having knowledge or 

information regarding this case." The plaintiffs do not claim 

that this order restrains their own speech, however. Instead, 

they complain that the gag orders restrain the speech of the Baby 

Byron parties and their lawyers. 
elements necessary to satisfy "the irreducible constitutional 

minimum of standing"). 

 Accordingly, courts have found that third parties have 

standing to challenge a gag order only when there is reason to 

believe that the individual subject to the gag order is willing 

to speak and is being restrained from doing so. E.g., In re Dow 

Jones, 842 F.2d at 607 (determining whether the recipients have 

standing required the court first to examine "[w]hether the 

[plaintiff] news agencies are actually potential receivers of 

otherwise restrained speech"); Public Citizen v. Liggett Group, 

Inc., 858 F.2d 775, 787 n.12 (1st Cir. 1988) (emphasizing that 

the third party had standing to challenge a protective order 

because "far from agreeing to the protective order, the 

plaintiffs to this action have opposed the protective order at 

every stage" and the speech, therefore, would be available); 

Radio & Television News Ass'n v. District Court, 781 F.2d 1443, 

1448 (9th Cir. 1986) (holding that the press lacks standing to 

assert the free speech rights of another when the person subject 

to the gag order has not challenged it). 

 Our cases are consistent with this view. In Pansy, for 

example, we employed an "available material" approach when we 

inquired into the practical effect of vacating the order of 

confidentiality at issue in that case; we noted that the 

plaintiff newspapers "ha[d] an interest in vacating the Order of 

Confidentiality" because they then could obtain the required 

information through Pennsylvania's Right to Know Act. 23 F.3d at 

784. Similarly, in United States v. Cianfrani, 573 F.2d 835, 845 
(3d Cir. 1978), we held that the intervening newsgathering 

organizations and reporters had standing to challenge the 

district court's order excluding the public from a pretrial 

suppression hearing and sealing the record of that hearing. 

There, speech was in fact going on and was thus "available," but 

the challenged order denied the intervenors the right to receive 

it. 

 Looking at the allegations in the verified complaint in 

the light most favorable to the plaintiffs here, there are 

reasons to conclude that the plaintiffs have adequately met a 

"willingness of the speaker" requirement for standing at this 

stage of the litigation. As we have noted, while neither party 

to the Baby Byron case is on the record as being opposed to the 

gag orders, the Derzacks at least were willing to talk at some 

point prior to the entry of the gag orders; The complaint alleges 

that the Derzacks "recently released a book detailing their 

experiences with Byron and their frustration with CYS and the 

courts." (App. at 9.) Moreover, the complaint further alleges 

that the judge "has threatened to remove Byron from the Derzack's 

[sic] home if the Derzacks appear publicly to promote their book 

or otherwise discuss their case." (App. at 10.) It is 

reasonable to infer from these allegations that the Derzacks are 

willing but restrained speakers who dare not challenge the gag 

orders for fear of reprisal from the judge. At this stage, we 

must accept these allegations and this permissible inference in 

the plaintiffs' favor. 
 In sum, we find that the plaintiffs have alleged facts 

in their verified complaint which would be sufficient to survive 

a motion to dismiss for lack of standing. It follows that we may 

proceed to entertain this appeal. Nonetheless, the plaintiffs 

upon remand still bear the burden of proving standing whenever it 

is challenged. See, e.g., Defenders of Wildlife v. Lujan, 911 

F.2d 117, 120 (8th Cir. 1990) ("[A] court's refusal to dismiss an 

action for lack of standing does not relieve the plaintiff of the 

burden of actually proving standing where a defendant contests 

the factual basis for standing."), rev'd on other grounds, 504 

U.S. 555 (1992). The plaintiffs must prove that the Baby Byron 

parties are willing to talk publicly about that case. If the 

district court, at any point, concludes to the contrary on the 

basis of an appropriate record, then it should proceed no 

further.3

III. 

 We exercise plenary review over an order granting a 

motion to dismiss for lack of subject matter jurisdiction. 

Delaware Valley Citizens Council for Clean Air v. Davis, 932 F.2d 

256, 264 (3d Cir. 1991). Because the district court dismissed 

 

3

 The district court may choose to address the standing issue in 

a pre-trial proceeding or at trial. See Doherty v. Rutgers Sch. 

of Law-Newark, 651 F.2d 893, 898 & n.6 (3d Cir. 1981); 13A 

Charles A. Wright et al., Federal Practice & Procedure § 3531.15, 

at 97-104 (1984 & Supp. 1995). Regardless of the procedure 

chosen ultimately to determine this issue, however, our decision 

here finding standing based on the allegations of the complaint 

neither forecloses the district court from reexamining the issue 

nor absolves the plaintiffs from carrying their burden of proof. 
the complaint before the defendants filed an answer, we review 

whether the complaint alleges facts on its face which, if taken 

as true, would be sufficient to invoke the district court's 

jurisdiction. Licata v. United States Postal Serv., 33 F.3d 259, 

260 (3d Cir. 1994). 

 The district court ruled that the plaintiffs' suit was 

barred by the Rooker-Feldman doctrine. The Rooker-Feldman

doctrine provides that "federal district courts lack subject 

matter jurisdiction to review final adjudications of a state's 

highest court or to evaluate constitutional claims that are 

'inextricably intertwined with the state court's [decision] in a 

judicial proceeding.'" Blake v. Papadakos, 953 F.2d 68, 71 (3d 

Cir. 1992) (alteration in original) (quoting District of Columbia 

Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983)); see 

also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). We have 

interpreted the doctrine to encompass final decisions of lower 

state courts. Port Auth. Police Benev. Ass'n v. Port Auth., 973 

F.2d 169, 178 (3d Cir. 1992). We have also concluded that 

"Rooker-Feldman does not bar individual constitutional claims by 

persons not parties to earlier state court litigation . . . ." 

Valenti v. Mitchell, 962 F.2d 288, 298 (3d Cir. 1992). 

 When a plaintiff seeks to litigate a claim in a federal 

court, the existence of a state court judgment in another case 

bars the federal proceeding under Rooker-Feldman only when 

entertaining the federal court claim would be the equivalent of 

an appellate review of that order. For that reason, RookerFeldman applies only when in order to grant the federal plaintiff 
the relief sought, the federal court must determine that the 

state court judgment was erroneously entered or must take action 

that would render that judgment ineffectual. Marks v. Stinson, 

19 F.3d 873, 886 n.11 (3d Cir. 1994) (holding Rooker-Feldman

inapplicable where "the district court could (and did) find that 

[the plaintiffs'] constitutional claims had merit without also 

finding that the [state] court erred"). As the Eighth Circuit 

Court of Appeals wrote recently: 

A federal district court has jurisdiction 

over general constitutional challenges if 

these claims are not inextricably intertwined 

with the claims asserted in state court. A 

claim is inextricably intertwined if the 

federal claim succeeds only to the extent 

that the state court wrongly decided the 

issues before it. In other words, RookerFeldman precludes a federal action if the 

relief requested in the federal action would 

effectively reverse the state decision or 

void its ruling. Accordingly, to determine 

whether Rooker-Feldman bars [plaintiff's] 

federal suit requires determining exactly 

what the state court held . . . . If the 

relief requested in the federal action 

requires determining that the state court 

decision is wrong or would void the state 

court's ruling, then the issues are 

inextricably intertwined and the district 

court has no subject matter jurisdiction to 

hear the suit. 

Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir. 

1995) (citations omitted). 

 Three state courts were involved in FOCUS' attempts to 

lift the gag orders issued in the Baby Byron case: the Family 

Division of the Allegheny County Court of Common Pleas, the 

Pennsylvania Superior Court, and the Pennsylvania Supreme Court. 
No one claims that the superior court's refusal to hear the 

plaintiffs' claim was an "adjudication" of FOCUS' First Amendment 

claim for Rooker-Feldman purposes. Instead, the defendants 

concentrate on the common pleas and the supreme court decisions, 

arguing that they were "adjudications" which were "inextricably 

intertwined" with FOCUS' First Amendment claims for the purposes 

of Rooker-Feldman. We address each of those decisions in turn. 

 The judge allegedly took two actions in the common 

pleas proceeding: (1) his initial decision to issue the gag 

orders and (2) his thwarting of FOCUS' attempt to intervene. The 

first set of decisions can be dealt with quickly. None of the 

plaintiffs was a party at the time the judge issued the original 

gag orders. As a result, the Rooker-Feldman doctrine would not 

have barred the plaintiffs--once the gag orders issued 

--from proceeding straight to federal court to challenge their 

constitutionality. Valenti, 962 F.2d at 298.4

 The plaintiffs argue that the judge's thwarting of 

FOCUS' attempt to intervene should not be viewed as an 

adjudication. While one could debate whether his tipstaff's 

refusal to accept the motion is an adjudication, we think there 

is a far easier way to resolve the matter. The crucial issue is 

not whether the action itself is "adjudicative." Instead, the 

 

4

 The defendants argue that Rooker-Feldman bars the plaintiffs' 

federal claims in part because the First Amendment issues were 

"inextricably intertwined" with the judge's gag order decisions. 

That is correct inasmuch as the parties to the Baby Byron case 

could not bring a First Amendment case in federal court 

challenging the gag orders. Under Valenti, however, RookerFeldman does not prohibit third parties--such as plaintiffs 

here--from challenging a state court gag order in federal court. 
issue is (1) whether the judge adjudicated FOCUS' First Amendment

claim and, if not, (2) whether his decision (if any) is 

inextricably intertwined with FOCUS' First Amendment claim. 

 The judge did not decide FOCUS' constitutional 

challenge to the gag orders or any other issue that is a 

predicate to the claim in the federal proceeding. In short, we 

have no reason to believe that in order for FOCUS to prevail in 

federal court, the court must decide "that the state court 

decision [on intervention] is wrong." Charchenko, 47 F.3d at 

983. In this respect, this situation is indistinguishable from 

the one we faced in Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994). 

In that case, some of the plaintiffs had filed petitions with the 

Philadelphia Court of Common Pleas asking relief on the basis of 

fraud and alleged constitutional violations in connection with an 

election. The court refused to entertain their claims asserting 

that it lacked jurisdiction to do so. We held that a subsequent 

proceeding in the district court was not barred by the RookerFeldman doctrine: 

[T]he court was not barred under RookerFeldman from hearing the constitutional and 

fraud claims of Marks and the Republican 

State Committee ("RSC") because these claims 

had not been determined by the state court, 

nor were they inextricably intertwined with a 

prior state court decision. Specifically, 

the court of common pleas dismissed Marks' 

and the RSC's claims without reaching the 

merits. Therefore, the district court was 

not faced with a situation where it was asked 

to review a determination of the state court. 

. . . Here, the district court could (and 

did) find that Marks' and the RSC's fraud and 

constitutional claims had merit without also 

finding that the court of common pleas erred 

when it dismissed their proceedings. 
Marks v. Stinson, 19 F.3d at 886 n.11. 

 Thus, had FOCUS stopped its state court activity at 

that point and filed this suit in federal district court, the 

Rooker-Feldman doctrine would not have barred it from challenging 

the constitutionality of the gag orders in federal court. 

 Whether the Pennsylvania Supreme Court's decision bars 

FOCUS' federal case presents a similar issue. FOCUS' motion 

before the supreme court was filed as a "Petition For 

Extraordinary Relief And Request For Expedited Decision." It 

asked the supreme court to: 

 a. Assume [King's Bench] jurisdiction over the herein 

matter pursuant to 42 Pa.C.S.A. §§502 and 726, and 

Pa. Const. Art. V, §10(a); 

 b. Shorten the time to three (3) days for the filing 

of answers to the herein petition; 

 c. Issue forthwith an order declaring the gag orders 

to be an unconstitutional restraint of speech; 

 d. Issue forthwith an order vacating the gag orders; 

and 

 e. Award such other relief as is just and 

appropriate. 

(App. at 68-69.) By order of December 12, 1994, the supreme 

court denied that petition without giving any reason. 

 Once again, we conclude that a federal court 

determining the constitutionality of the gag orders would not 

need to conclude that the state court's decision was erroneous. 

Nor would it be required to invalidate in any way the state 

court's dispositive order. 
 The King's Bench jurisdiction of the Supreme Court of 

Pennsylvania has been characterized by that court as "our 

extraordinary jurisdiction"--a discretionary jurisdiction to "be 

invoked sparingly, and only in cases 'involving an issue of 

immediate public importance.'" Washington County Comm'rs v. 

Pennsylvania Labor Relations Bd., 417 A.2d 164, 167 (Pa. 1980) 

(quoting 42 Pa. Cons. Stat. Ann. § 726). As the court explained 

in Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425, 430 

n.11 (Pa. 1978), appeal dismissed, 443 U.S. 913 (1979): 

[T]he presence of an issue of immediate 

public importance is not alone sufficient to 

justify extraordinary relief. As in requests 

for writs of prohibition and mandamus, we 

will not invoke extraordinary jurisdiction 

unless the record clearly demonstrates a 

petitioner's rights. Even a clear showing 

that a petitioner is aggrieved does not 

assure that this Court will exercise its 

discretion to grant the requested relief. See 

Illinois v. City of Milwaukee, 406 U.S. 91, 

92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). 

 The Pennsylvania Supreme Court's order of December 12, 

1994, is consistent with an exercised discretion on its part not 

to invoke its extraordinary jurisdiction. Its failure even to 

comment on the constitutional issue strongly suggests that this 

was the basis for its disposition. It is sufficient for present 

purposes, however, to note that nothing in the record of the 

proceedings before the Supreme Court of Pennsylvania 

affirmatively indicates that it adjudicated the First Amendment 

issue that the plaintiffs have presented to the district court in 

this case. 
 Where the extraordinary jurisdiction of a court is 

unsuccessfully invoked and the court does not expressly 

adjudicate the tendered merits issue, the general rule is that 

there is no preclusive effect and the petitioning party is free 

subsequently to pursue his claim in any appropriate forum. E.g., 

Hiley v. United States, 807 F.2d 623, 625-26 (7th Cir. 1986); 

United States v. Dean, 752 F.2d 535, 541 (11th Cir. 1985), cert. 

denied, 479 U.S. 824 (1986). While we have found no case of the 

Supreme Court of Pennsylvania directly on point, we are confident 

that it would give its December 12th order no claim preclusive 

effect. Accordingly, we are not bound to give it claim 

preclusive effect. 

 While this does not directly answer the Rooker-Feldman

issue presented by the December 12th order, we think it points 

the way. As we have previously noted, "the Rooker-Feldman

doctrine has a close affinity to the principles embodied in the 

legal concepts of claim and issue preclusion." Valenti, 962 F.2d 

at 297. Moreover, because the December 12th order did not affect 

the legal relationship before the parties and did not preclude 

further proceedings on the constitutional issue tendered, it is 

clear that the district court in this case is not being asked 

here to play the role of a reviewing court. Not only is the 

district court being asked to adjudicate an issue distinct from 

any the Supreme Court of Pennsylvania expressly adjudicated, it 

is also being asked to grant relief that is entirely consistent 

with the existence of the December 12th order. 
 For these reasons, we conclude that this issue is 

governed by the principles set forth in Marks v. Stinson, even 

though the Supreme Court of Pennsylvania, unlike the court of 

common pleas in Marks, declined to give a reason for its 

disposition. Accordingly, we hold that the Rooker-Feldman

doctrine presents no bar to the plaintiffs' federal court 

action.5

IV. 

 The district court also held that it should abstain 

from asserting jurisdiction under Younger v. Harris, 401 U.S. 37 

(1971). We exercise plenary review over the legal determinations 

of whether the requirements for Younger abstention have been met 

and, if so, we review the district court's decision to abstain 

for abuse of discretion. O'Neill v. City of Phila., 32 F.3d 785, 

790 (3d Cir. 1994), cert. denied, 115 S. Ct. 1355 (1995). 

 Three requirements must be met before Younger

abstention is appropriate: (1) there must be an ongoing state 

judicial proceeding to which the federal plaintiff is a party and 

with which the federal proceeding will interfere, (2) the state 

 

5

 The individual plaintiffs have an additional argument 

supporting their view that Rooker-Feldman does not bar their 

federal court challenges. As we have stated, "Rooker-Feldman

does not bar individual constitutional claims by persons not 

parties to earlier state court litigation . . . ." Valenti, 962 

F.2d at 298. Drawing an analogy to concepts of claim preclusion 

and issue preclusion, however, in this particular case we would 

group the individual plaintiffs together with FOCUS for both 

Younger and Rooker-Feldman purposes. Cf. 18 Charles A. Wright et 

al., Federal Practice & Procedure § 4456, at 491-92 (1981 & Supp. 

1995). 
proceedings must implicate important state interests, and (3) the 

state proceedings must afford an adequate opportunity to raise 

the constitutional claims. Port Auth., 973 F.2d at 173. We 

conclude that the first requirement is not present here. The 

judge's refusal to accept or to rule upon FOCUS' motion to 

intervene means that FOCUS was never a party in state court--and 

there was no ongoing case for Younger purposes--until FOCUS filed 

its King's Bench petition in the Pennsylvania Supreme Court. 

Since that proceeding had been terminated without an adjudication 

of the constitutional issue at the time of the filing of the 

federal complaint, Younger abstention was improper. 

 The parties agree that the Baby Byron case is 

"ongoing." Still, while the Baby Byron case is ongoing in the 

usual sense, it is not "ongoing" for Younger purposes because 

FOCUS has never been allowed to intervene and cannot there secure 

an adjudication of its constitutional claim. The defendants 

acknowledge, as they must, that FOCUS never became a party to the 

custody hearings. The best they can do is to argue that FOCUS 

tried to become a party and that this should suffice for Younger

purposes. While the defendants grant that FOCUS cannot secure an 

adjudication of its First Amendment claim from the court of 

common pleas with the state case in its present posture, they 

propose a rule that any party who attempts unsuccessfully to 

intervene in a state proceeding may not seek federal relief 

unless and until she has exhausted any possibility of overturning 

the decision on intervention. This would include, in the 
defendants' view, filing a King's Bench petition seeking an order 

permitting intervention. 

 We find no basis for implying a duty to exhaust all 

available state process in pursuit of intervention and, 

accordingly, see no reason why FOCUS, once rejected by the court 

of common pleas, was not free to seek relief immediately from a 

federal court. Our observations in Marks about Younger

abstention are equally applicable here: 

[I]t is . . . important to recognize that a 

person with a federal Civil Rights Act claim 

has no duty to exhaust state remedies before 

pursuing his or her claim in the federal 

courts. Patsy v. Board of Regents, 457 U.S. 

496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). 

Younger principles must be applied in a 

manner consistent with this well-established 

proposition. As we noted in Monaghan v. 

Deakins, 798 F.2d 632, 638 (3d Cir. 1986), 

aff'd in part and vacated in part, 484 U.S. 

193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988), 

"in no case has the Supreme Court or this 

court ever turned the propriety of a Younger

dismissal upon the mere availability of a 

state judicial proceeding." Thus, the 
plaintiffs in this proceeding could have 

proceeded in federal court without having 

resorted to the state's judicial process. 

Marks v. Stinson, 19 F.2d at 882. 

 These principles were recently applied by the Court of 

Appeals for the Seventh Circuit in a context very similar to that 

presented here. In Hoover v. Wagner, 47 F.3d 845 (7th Cir. 

1995), the plaintiffs were two anti-abortion demonstrators and a 

journalist who reports on anti-abortion demonstrations. They 

brought a § 1983 declaratory action seeking relief from a 

Wisconsin state court injunction limiting the anti-abortion 

activities of several named state court defendants "and all 

persons acting in concert with them." The federal plaintiffs 

were not parties to the ongoing suit in which the injunction had 

been entered but alleged that they wished to protest abortions at 

the clinics named in the injunction (or in the case of the 

journalist to write about such protests) and that they were 

deterred from engaging in First Amendment protected activity by a 

well-grounded fear that the injunction would be interpreted as 

prohibiting their activity on pain of criminal contempt. The 

defendants in the federal proceeding raised Younger abstention as 

a bar to relief, asserting that "the plaintiffs should have 

intervened in the state court injunction proceeding and then they 

could have gotten the adjudication they want, in the state 

courts." 47 F.3d at 848. The Court of Appeals held that there 

was no duty to intervene, observing that "nothing in Younger or 

the cases following it suggests that persons claiming a violation 

of their federal rights have an obligation before turning to 
federal court to see whether there is some state court proceeding 

they might join in order to present their federal claims there." 

Id.

 If a would-be federal plaintiff in a civil rights 

action has no duty to attempt to intervene in an ongoing state 

suit in which he might be able to tender his constitutional 

issue, it follows, we believe, that FOCUS, once rejected by the 

court that entered the gag order, had no duty to exhaust all 

extraordinary state remedies in an attempt to intervene. The 

Younger doctrine is based on comity and the notion that comity 

makes it undesirable to permit a party access to a federal court 

when he is currently involved in state proceedings where he can 

secure an adjudication of his constitutional claim. We believe 

FOCUS has done everything that considerations of comity can 

reasonably require of it. It could have gone directly to federal 

court without seeking to intervene. Consistent with 

considerations of comity, however, it afforded the court of 

common pleas an opportunity to adjudicate its constitutional 

challenge but was rebuffed without a ruling on that challenge. 

The interests of comity would be ill served, we believe, were we 

to hold that FOCUS by so acting in the service of comity had 

erected substantial barriers to its federal court access. We 

decline to so hold. 

 Because there is no ongoing state proceeding in which 

FOCUS can secure an adjudication of its constitutional claim, we 

hold that Younger abstention was inappropriate. 
V. 

 Finally, citing Hoover v. Wagner, 47 F.3d 845 (7th Cir. 

1995), the defendants assert "basic principles of equity" as 

alternative grounds for affirming the district court. As we have 

explained, in Hoover potential anti-abortion protestors and a 

journalist--none of whom were named defendants in the state court 

action--sought declaratory and injunctive relief against the 

state court injunction on the ground that the order violated 

their rights under the First Amendment. After first finding 

Younger inapplicable, the court of appeals affirmed the district 

court's dismissal because the remedy sought was unworkable. 

 The court reasoned: 

[The plaintiffs] want the federal court to 

tell the state judge to rewrite his 

injunction to make it clearer, to refrain 

from convicting anybody who does not really 

and truly violate the injunction as revised, 

and to tell the police chief and the judge 

not to infer that people are assisting in 

violating the injunction from their mere 

proximity to defendants named in the 

injunction. The relief that the plaintiffs 

seek is at once an insult to the judicial and 

law enforcement officials of Wisconsin, an 

interference with an ongoing state court 

proceeding, and an empty but potentially 

mischievous command to these officials to 

avoid committing any errors in the 

enforcement of the [state court] injunction 

. . . . 

 . . . The plaintiffs' able counsel, 

when pressed at oral argument, was unable to 

suggest a useful amendment to the injunction 

and acknowledged that what he really wants 

from the federal courts is a firm warning to 

Wisconsin officialdom that they are not to 

trample on his clients' constitutional 

rights. . . . [T]he difficulty of framing a 

useful injunction, when considered in 

conjunction with the affront to comity that 
such an injunction would constitute and the 

nebulous and speculative character of the 

fears that have led the plaintiffs to sue, 

convinces us that this suit is an 

inappropriate invocation of the equity powers 

of the federal courts. 

Id. at 850-51. 

 Hoover is inapposite. The plaintiffs in Hoover did not 

claim that the state court injunction as written violated their 

First Amendment rights; they asserted only that it was capable of 

being applied in a manner that violated those rights. They were 

asking the federal court to warn the state court and police 

officials to enforce the injunction in a constitutional way. The 

plaintiffs here, on the other hand, complain that the gag orders 

can only be applied in ways that infringe on their First 

Amendment rights to receive information from willing speakers who 

will not speak solely because of those orders. While the 

district court may be confronted with a difficult merits issue 

when it attempts to reconcile First Amendment interests with 

Pennsylvania's interest in confidentiality for family court 

proceedings, there is no reason to believe that it will have any 

greater difficulty in fashioning an effective remedy than in any 

other § 1983 action challenging the constitutionality of state 

action. Thus, we cannot say that "this suit is an inappropriate 

invocation of the equity powers of the federal courts." Id. at 

851. 

VI. 
 For the foregoing reasons, we will reverse the district 

court's order granting the motion to dismiss and remand for 

further proceedings consistent with this opinion.